One can be certain that these statistics cover only a small percentage of actual
bribery cases, but the size of the dark figure is unknown. Media reports indicate
an increase in bribery activities in recent years, but it is not clear whether the
perception of growth mirrors an actual increase of criminal conduct in this area or
is only a function of greater public awareness raised by singular spectacular
cases [2][2] See Dölling, Gutachten C zum 61. Deutschen Juristentag,.... One indication of the lack of validity of police statistics with respect to the
true development of the corruption phenomenon is the fact that crime statistics
show a 47% decrease in passive bribery between 2000 and 2001 [3][3] Source : Bundeskriminalamt, Polizeiliche Kriminalstatistik... - a figure which
can only be the result of a random deviation in reported offenses.

Official and scientific interest in domestic and international corruption has certainly
increased since 1990. Significant steps were the passing of the Corruption
Combat Act (Korruptionsbekämpfungsgesetz) of Aug. 13,1997, which enlarged
the scope of criminality, as well as the extension of the prohibition of active bribery
to officials of the European Communities and generally to foreign officials involved
in business relations, by two laws passed in 1998 [5][5] EU-Bestechungsgesetz of Sept. 10,1998 (BGBl. II 2340).... The activities of Transparency
International have also contributed to raising the German public’s awareness of
the problems connected with international business corruption [6][6] See, e.g., the comprehensive multidisciplinary volume....

anyone who is otherwise entrusted, by a public agency or any other entity, with
performing functions of public administration, regardless of the form of
organisation elected for the performance of the public function.

The last part of the definition of public official, modified by 1997 legislation, is
meant to cover the growing area of « privatized » administration, e.g., communal
energy or public transportation providers organized in the form of commercial
business companies totally or largely owned by the state. Bribery provisions are
meant to cover employees of such entities to the extent their functions are still
regarded as « public », or, as the Federal Court of Appeals (Bundesgerichtshof) put
it, when the organisation in question appears as the « extended arm » of the state [8][8] Entscheidungen des Bundesgerichtshofes in Strafsachen...
. Only when a formerly public function has been privatized as such (e.g., in
Germany, telecommunications) and has been opened to unlimited commercial
competition do the provisions on bribery of public officials no longer apply [9][9] For details and examples, see Dölling (n. 2), pp. 54....

Members of parliament and party officials as such are not covered by the definition
of « public official ». For members of a Federal or State parliament, there exists
however a special penal provision prohibiting the buying or selling of votes (§ 108e
PC).

German law distinguishes between simple and aggravated cases of active and
passive bribery. Simple bribery (Vorteilsannahme, § 331 PC) consists in
demanding or accepting any advantage « for providing public service ». In this
case, the parties need not envisage any (legal or illegal) specific act to be
performed by the public official. It is even criminal for a public official to accept an
advantage ex post facto for services rendered. Aggravated bribery
(Bestechlichkeit, § 332 PC), on the other hand, presupposes an agreement on a
specific act of public service to be performed (or having been performed) in
exchange for an advantage demanded or accepted by the public official [10][10] The same requirement of specificity applies to passive...;
performance of this act must be in violation of the official’s duties.

The « advantage » demanded or accepted by the public official is defined broadly
by German courts. It need not consist in money or other material goods; even
satisfaction of the public official’s ambition is sufficient [11][11] See Cramer, in : Schönke/Schröder, Strafgesetzbuch,.... According to the wording
of the statute, the advantage can also be given to a third person. One should
expect, however, that the third person’s advantage is somehow related to the
interests of the public official (e.g., when a gift is given to the official’s spouse).
Cases in which a citizen promises to make a donation to a charity in response to
some service rendered by a public official, or cases of sponsoring of scientific or
social causes connected with a public agency do not meet the purpose of the
prohibition (i.e., to keep the private and public spheres separate) and should
therefore not be regarded as criminal [12][12] See Cramer, in : S/S, § 331 note 53a; Korte, Neue Zeitschrift....

The act of passive bribery consists in demanding, accepting a promise of or
receiving any advantage for providing public service (simple bribery) or for the
illegal performance or non-performance [13][13] § 336 PC specifically provides that non-performance... of a specific illegal act (aggravated
bribery). Since the mere utterance of a demand by the public official already
constitutes (completed) bribery, it is not necessary for punishability that the public
official keep his part of the illicit deal. The Federal Court of Appeals even upheld
a conviction for bribery when the public official never planned to perform the act
expected of him but only feigned his readiness to do so [14][14] BGHSt 15,88 at 97 (1960)., and § 332 III PC clearly
indicates that this is the correct interpretation of the law [15][15] § 332 III reads : « If the offender demands, accepts.... According to the Federal
Court of Appeals, it is sufficient for conviction that the public official shows his
readiness to accept an advantage although he later pays for the goods from his
own funds [16][16] See BGH Neue Zeitschrift für Strafrecht - Rechtsprechungsreport.... Because the act of bribery has been extended far into the early
stages of a corruptive agreement, the German legislature has not found it
necessary to penalize mere attempts.

A public official may accept a gift for the (lawful) performance of public service if
the appropriate public agency - usually the agency that employs him, or an agency
supervising this agency - , within its authority [17][17] There exist different views as to whether an unlawfully..., gives him permission to do so
either before or immediately after the transaction (§ 331 III PC). Beyond that,
German law has no special provision exempting minor gifts from punishability.
However, there is general agreement that socially accepted customs (e.g., giving
a small gift to the postman for New Year’s) are not unlawful; some writers employ
the doctrine of « social acceptance » (Sozialadäquanz) to reach this result [18][18] See Dölling, ZStW 112 (2000), p. 344; Jescheck, in :.... It
should be noted, however, that rules of social politeness by themselves do not
provide a justification for public officials’ acceptance of gifts, and that there is a
general tendency of administrative agencies to tighten the rules with respect to
« customary » gifts.

As far as complicity is concerned, the general rules as to instigation (§ 26 PC) and
aiding and abetting (§ 27 PC) apply. The person offering or giving the bribe,
however, is not treated as a mere accomplice - which would lead to a mitigation of
punishment under § 28 I PC [19][19] § 28 I PC provides that an accomplice in an offense... - but as a principal of the offence of active bribery.
In cases of simple bribery (§§ 331 and 333 PC), the penalties for passive and
active bribery are the same; in cases of aggravated bribery, the minimum penalty
for passive bribery is six months imprisonment (§ 332 I PC), for active bribery it is
only three months imprisonment (§ 334 I PC). If a person acts as a go-between
and thus supports both the giver and the taker of the bribe, it is difficult to decide
whether he should be punished for aiding and abetting active or passive bribery,
or both. Strangely, the offender in this situation is treated more leniently (because
of § 28 I PC) if he is regarded as an accomplice (only) in passive bribery [20][20] Cf. Rudolphi, in : Systematischer Kommentar zum Strafgesetzbuch....

Passive bribery is punishable by fines or imprisonment up to 3 years (simple
bribery) or 5 years (aggravated bribery) [21][21] For results of an empirical study on sentences imposed.... In especially aggravated cases, the
penalty is imprisonment between 1 and 10 years (§ 335 I PC). Typical examples
of especially aggravated cases are (§ 335 II PC):

The offender seeks or obtains extensive advantages;

the offender continually demands and receives advantages in exchange for his
readiness to illegally perform certain acts of public service;

the offender acts for continuing gain (gewerbsmäßig) or as a member of a gang
formed to commit bribery.

A conviction for bribery does not per se lead to expulsure from public office.
However, the court can impose loss of the public office as an additional
punishment when it sentences the official to imprisonment of six months or more
for aggravated bribery (§ 358 PC). Moreover, public service law provides that any
public servant convicted of an intentional offense and sentenced to one year
imprisonment or more automatically loses his office [22][22] See § 24 Beamtenrechtsrahmengesetz, § 48 Bundesbea....

Illicit gains, i.e. any material advantage the public official may have received as a
bribe, can be confiscated according to § 73 PC. According to § 338 PC in
connection with § 73d PC, money and other objects in the possession of a
convicted offender of certain forms of aggravated bribery [23][23] The provision extends to active and passive bribery... can be confiscated if
there is sufficient cause to assume that the money or objects in question stem
from the offense adjudicated or a similar offense [24][24] As to the high standard of proof required, see BGHSt.... This provision is an indication
of the fact that the legislature regards these aggravated forms of bribery as
possibly linked to organised crime, because the sanction of « extended
confiscation » (§ 73d PC) has been specifically designed as a tool of depriving
organised crime of its resources.

The period of limitations for bribery is five years (§ 78 III Nr. 4 PC). The period of
limitation begins to run when the offense has been completed (§ 78a PC). In
bribery cases, completion occurs when each side has fulfilled its part of the illicit
bargain, i.e., the advantage has been given and the public official has, in the case
of § 332 PC, performed the act for which the bribe was intended [25][25] BGHSt 11,345 at 347 ( 1958); for an opposing view (completion....

Immunity extends only to members of the Bundestag (Federal parliament) (art. 46
Federal Basic Law). Their immunity can be waived by the Bundestag (art. 46 II
Basic Law). In addition, art. 46 I Basic Law provides that no member of the
Bundestag may be prosecuted for his voting (indemnity). Selling of votes, as made
punishable by § 108e PC, is however not covered by indemnity because the
criminal act is not the casting of the vote but the prior act of accepting money or
other advantages for voting in a certain way [26][26] Cf. Eser, in : S/S, § 108e note 1..

b) Active bribery

Any person can be a perpetrator of active bribery. German law does not provide
for criminal liability of legal persons, but such entities can be sentenced to pay an
administrative fine if a natural person in a position of responsibility has committed
an offense in violation of the legal person’s legal duties or the offense has lead to
enrichment of the legal person (§ 30 Gesetz über Ordnungswidrigkeiten).

The definition of active bribery in §§ 333,334 PC mirrors the definition of passive
bribery treated above. The prohibited act of active bribery consists in offering,
promising or providing any advantage to a public official; in the case of simple
bribery (§ 333 PC), the advantage is offered or granted merely for providing public
service (in the past or in the future); in the case of aggravated bribery (§ 334 PC),
the advantage is directly linked to a specific illegal act of public service. As with
passive bribery, verbally « offering » an advantage suffices for completion of the
offense; one can thus be punished for bribery even if the public official ignores or
immediately rejects the offer.

a) Passive bribery

Possible offenders of passive business bribery are employees, including
managers, and persons charged with acting on behalf of a business enterprise.
The latter group comprises, e.g., business consultants or architects entrusted with
making or preparing decisions for an enterprise [30][30] Tiedemann, in : LK, § 299 note 17.. The owner of an enterprise
cannot perpetrate the offense.

The acts constituting passive business bribery have been formulated in parallel
with the acts of passive bribery in §§ 331,332 PC : demanding, accepting the offer
of, or accepting an advantage. The advantage must be related to a (future)
specific activity of the employee, namely his giving preference to the briber or
another person in connection with the acquisition of goods or commercial services
in a competitive context. « Giving preference » is a broad concept that includes,
e.g., accepting goods of substandard quality or making payments earlier than to
competitors [31][31] Tiedemann, in : LK, § 299 note 31.. Providing business-relevant information exclusively to the bribing
competitor can, in the appropriate context [32][32] E.g., when having this information enables the business..., also be a case of « giving
preference ». The Code requires further that the preference to be given be
« corrupt » (unlauter) - a concept which has given rise to differing interpretations [33][33] For discussions, see Heine, in : S/S, § 299 notes 19-20;....
The most plausible explanation is that any preference not based on the quality of
an offer but influenced by a personal advantage given to the decision-maker is per
se corrupt, so that the added requirement is in fact redundant.

b) Active bribery

Active bribery in business relations is defined, in § 299 II PC, in terms closely
parallel to § 334 PC concerning bribery of public officials. The relevant acts are
offering, promising or granting an advantage, and the underlying purpose must be
the giving of preference to the briber or another person in commercial competition
relating to goods or services. There is some dispute, however, as to whether any
person can commit active business bribery. Although the Code does not limit the
act of active bribery to a particular group of individuals, the majority view regards
as potential perpetrators only competitors in the relevant market or persons acting
on their behalf [34][34] For an extensive discussion, see Tiedemann, in : LK,.... Customers therefore cannot commit the offense.

The penalty for active as well as passive business bribery is a fine or imprisonment
up to three years. In aggravated cases, the maximum penalty is imprisonment up
to five years. An aggravated case exists, as a rule, when the offender has sought
to obtain large advantages, or when he has acted for continual gain or as a
member of a gang formed for the purpose of committing acts of this kind (§ 300
PC).

III. International Aspects

1. Extent of Protection and Application of German Law

The provisions against public corruption generally protect only the integrity of
German public administration. They therefore do not generally extend to bribing a
foreign official even if the act is committed by a German citizen and on German
territory [35][35] Dölling (n. 2), p. 102; Eser, in : S/S, vor § 3 notes.... However, foreign nationals can be punished under German law if they
bribe German public officials or members of parliament (§ 108e PC) even if the act
is not committed on German territory (§ 5 nos. 14 and 14a PC).

The situation is more complicated with respect to business corruption. If one sees
as the interest protected by § 299 PC only the functioning of competition one
could take the position that the proper functioning of foreign markets is not an
interest to be protected by German legislation, so that the penal provision
consequently does not extend to attempts of illicitly influencing competition
abroad. This statement needs to be qualified, however, in two respects : first,
competition within the common market of the European Union has a direct impact
on Germany so that the scope of the protection should - at least de lege ferenda
- be extended to Union-wide competition [36][36] See Tiedemann, in : LK, § 299 note 3, citing draft...; second, corrupt interference with
business competition abroad can have an impact on monetary interests of
German competitors and thus directly affect legal interests to be protected by
German law. At least in the latter case, i.e. when the offense committed abroad
had or could have had a detrimental effect on a German competitor, § 299 PC
should be applicable, provided that the requirements of German international
criminal law are fulfilled. These requirements are that either
(i) the offense was (at least in part) committed on German territory (§ 3 PC),
(ii) the offense was committed by a German citizen (§ 7 II no. 1 PC), or
(iii) the victim of the offense was a German citizen (§ 7 I PC).

In the last two instances, the Code further requires that the offense must have
been punishable in the jurisdiction where it was committed. In that case, criminal
liability abroad must be based on a prohibition similar in purpose to the German
provision [37][37] It is not quite clear whether this requirement is fulfilled,.... If the offense of business bribery affecting monetary interests of a
German competitor is committed on German territory (case (i) supra) or if it is
punishable in the jurisdiction where it has been committed (case (iii) supra) even
a foreign national can be punished under German law.

2. Implementation of International Agreements

Germany has joined the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions of 1997 and has
implemented its Article 1 by passing the Gesetz zur Bekämpfung internationaler
Bestechung in 1998 [38][38] Bundesgesetzblatt I 1998, p. 2327. . This law declares that, with respect to the application of
aggravated active bribery (§ 334 PC) to an act of corrupting related to a future
judicial act or act of public service, committed in order to acquire or secure for the
actor or any other person a contract or an unfair advantage in international
commercial relations, a « judge » can also be a judge of a foreign state or of an
international court, and a « public official » can also be a public official of a foreign
state or a person mandated to perform public functions for a foreign state, or an
official or employee of an international organisation [39][39] Art. 2 § 1 Gesetz zur Bekämpfung internationaler B.... Art. 2 § 2 of this law also
makes it an offense to offer, promise or grant to a member of the legislative organ
of a foreign state or of an international organisation an advantage in exchange for
that member’s taking action (in connection with his official function) to acquire or
secure an unfair advantage for the giver or any other person in international
business relations. With respect to influencing foreign members of parliament,
criminal liability thus goes significantly further than with respect to German
members of parliament, where § 108e PC only prohibits the purchase of votes [40][40] See Zieschang, NJW 1999,105 at 107..
In accordance with Art. 4 OECD Convention, the German statute extends
jurisdiction of German criminal courts to acts of bribing foreign officials or
legislators committed abroad by German citizens. In this situation, German
jurisdiction exists even in the absence of a norm penalizing the relevant conduct
in the foreign jurisdiction, as § 7 PC generally requires for offenses committed
abroad by German nationals.

Moreover, Germany has implemented the Protocol of the EC Council of Sept. 27,
1996 requiring the assimilation of the act of bribing an official of the EC or of any
member state to the offense of bribing a national public official. The EU-Bestechungsgesetz of 1998 [41][41] Bundesgesetzblatt I 1998, p. 2340. uses the same technique as the law relating to
combating corruption of foreign officals (supra), simply extending the definitions of
« judge » in §§ 332 and 334 PC to judges of any member state of the European
Union as well as to judges of Courts of the European Communities, and extending
the definition of « public official » in the same provisions of the Penal Code to
respective officials of EU member states as well as to officials of the European
Communities as defined in Art 1 of the EC Protocol of 1996. Art. 2 § 2 EU-Bestechungsgesetz extends jurisdiction of German courts to acts committed
abroad, either by German nationals or by foreign public officials covered by the
statute [42][42] It should be noted that territorial application of.... It should be noted that the EU-Bestechungsgesetz goes further than the
law relating to combating corruption of foreign officals in that it also covers
aggravated passive corruption. As a consequence, German courts could convict
under German law, e.g., a Belgian public official who accepted bribes from a
French citizen in Belgium, regardless of the question whether his conduct was
punishable under Belgian law. This far-reaching assimilation can only be
explained by the - empirically doubtful - assumption that public administration,
including individual responsibility for misconduct, in the member states of the
European Union follows more or less the same principles and can thus be
regarded as a common domain of the Union [43][43] The preambles of the Protocols of Sept. 27,1996, and....

IV. Procedural Aspects

Initiation of criminal proceedings for bribery of public officials is possible without
any special complaint or authorization. With respect to bribery in business
relations, § 301 PC requires an application of the victim or of an association
concerned with good competition practice, but the public prosecutor can file an
accusation even without the victim’s formal consent whenever he, in his
unreviewable discretion, deems a special public interest in prosecution to exist.
There are no legal obligations to report instances of corruption to law enforcement
agencies.

The public prosecutor is, in principle, required by law to open an investigation
whenever there is good cause to believe that a corruption offense (or any other
criminal offense) has been committed (§ 160 I Code of Criminal Procedure
[hereinafter : CCP]) and to file an accusation whenever there is sufficient evidence
to sustain the charges (§ 170 I CCP). Since corruption offenses are not felonies
under German law, the prosecutor can, however, with the consent of the court
refrain from prosecution if he regards the offense as insignificant (§ 153 CCP) or
if the suspect agrees to make a payment or to perform some other act indicating
his repentance and thereby removes any public interest in prosecution (§ 153a
CCP). This decision of the public prosecutor cannot be judicially reviewed.

In cases of business corruption, the victim (i.e., any competitor whose interests
might have been affected by the offender’s corrupt practices) can himself bring the
case to court even if the public prosecutor declines prosecution (§ 374 I no. 5a
CCP). In that case, the victim must himself collect the relevant evidence and
present the case in court. Because of the practical difficulties involved [44][44] And because the court can at any time dismiss the case..., private
criminal actions have become extremely rare in German courts.

If specific facts give rise to the suspicion that someone has committed aggravated
passive or aggravated active bribery (§§ 332,334 PC) and if the investigation of
the case would be difficult without secret surveillance, a panel of the district court
can permit the police to install hidden microphones or other technical devices for
secret listening to conversations in the home of a suspect or of a person whose
home the suspect uses (§ 100c I Nr. 3 (a) CCP). This authorization for invading
the privacy of the home by means of listening devices is an anomaly insofar as the
less intrusive use of wiretaps and even the use of listening devices outside homes
is not permissible in bribery cases (cf. §§ 100a, 100c I no. 2 CCP).

Undercover police agents can generally not be used to investigate bribery
offenses except when there is a suspicion that the offense has been committed by
members of a criminal gang or organization, or that it has been committed on a
continuous basis or for continual gain (cf. § 110a I CCP). With respect to informers
who are not members of the police force, the Code of Criminal Procedure does not
contain any rules, and the courts generally tolerate the use of such informers.
There is no provision for giving immunity to « crown witnesses » in the area of
corruption, but the prosecutor can, in appropriate cases, make use of his
discretion to refrain from prosecution (see supra).

V. Other Regulations

According to German tax law, bribes received are subject to income tax. Until
1996, it was possible to set off bribes from taxable income as business expenses.
According to the present tax law, this is no longer permissible if either the giver or
the receiver of the bribe has been convicted of bribery, an adminstrative fine has
been imposed on him, or a prosecution for bribery has been dismissed under §§
153-154e CCP (§ 4 V no. 10 Einkommensteuergesetz) [46][46] For details, see Joecks, in : Pieth/Eigen (n. 6), pp. 373.... This regulation means,
however, that taxation is dependent on the scope of the criminal law, both in its
normative extension (so that the expansion of criminal liability to business bribery
abroad by the 1998 law on the combat against international business corruption
has had the side-effect of reducing the possibility to deduct bribes paid abroad as
business expenses) and, more importantly, in its concrete application to individual
cases (bribes can be deducted as long as there has not been a successful criminal
prosecution).

VI. Related Offenses

With respect to general offenses directed against the financial interests of the
state or a state-controlled enterprise, breach of trust (Untreue, § 266 PC) is a
practically important example. A public official commits Untreue whenever he,
within the scope of his factual ability to dispose of or affect others’(especially the
state’s) financial interests, violates his duties and thereby causes monetary
damage. This would be the case, e.g., when a public official, in exchange for a
bribe, accepts substandard services or goods from an entrepreneur on a contract
with the state, or neglects to pursue the state’s financial claims against a business
partner until the statute of limitation has expired [47][47] The same offense can be committed by a manager or employee.... It is, of course, also possible
that a bribed public official commits theft or embezzlement of state property (242,
246 PC), falsifies a document (§ 348 PC) or neglects his duty to bring an offender
to justice (§ 258a PC).

In German law, there is no general « abuse of official authority » offense relating to
public officials. Special provisions concern the violation of the duty to keep state
secrets (§§ 203 II, 353b, 355 PC); these provisons can be used agaginst bribed
public officials in appropriate cases.

The offense of money laundering (§ 261 PC) is applicable to the proceeds of
aggravated passive and active bribery of a public official (§§ 332,334 PC). The
offense consists in concealing or jeopardizing the detection of (direct or indirect)
proceeds of bribery or the acquisition or possession for another person of such
proceeds. Money laundering can also be committed by the perpetrator of the
« source » offense himself. The offense of receiving stolen goods (§ 259 PC) is
generally not applicable to bribery of a public official because its predicate offense
must have been directed against the property of another [48][48] Cf. Ruß, in : LK, § 259 note 5;Stree, in : Schönke/Schröder,....

Persons who bribe a public official can at the same time commit (attempted) fraud
(§ 263 PC) if the requirements of that provision, especially financial damage to the
state or another person as a direct result of fraudulent conduct, are fulfilled. In
most cases, this will only be possible if the bribed public employee commits
another fraudulent act against those in charge of making financial dispositions.

Illegal agreements to restrict competition are regarded as administrative violations
under German competition law (§§ 1,81 I no. 1 Gesetz gegen
Wettbewerbsbeschränkungen). Offenders are fined, the maximum of the fine
being 500,000 Euro or three times the sum of the offender’s gain, whichever is
higher (§ 81 II Gesetz gegen Wettbewerbsbeschränkungen). However, fraudulent
agreements to influence public tenders on the acquisition of goods or services
(submission fraud) are punishable as criminal offenses with a maximum of five
years imprisonment (§ 298 PC). If a concrete damage to competitors or to the
enterprise making the tender can be proved, such illicit agreements can also be
punished as fraud (§ 263 PC) [49][49] See BGHSt 38,186 (1996), and discussion of this decision....

Offenses directed against financial interests protect foreign citizens as well as
foreign states [50][50] Eser, in : Schönke/Schröder, vor § 3 note 15.. Offenses of this kind committed by German nationals abroad can
be adjudicated in Germany under German criminal law if the offense was
punishable in the jurisdiction where it was committed (§ 7 II no. 1 PC). Foreign
nationals can be punished in Germany if they committed the offense in Germany
(§ 3 PC), or if the victim was a German citizen [51][51] There is some dispute as to whether German law is applicable... and the act was punishable in the
jurisdiction where it was committed (§ 7 I PC).

As for international agreements joined by Germany, see III. supra. To the extent
the implementing legislation assimilates German and foreign public officials, this
assimilation extends to related offenses the definition of which makes reference to
§§ 332 and 334 PC, e.g., money laundering (§ 261 PC). In cases of money
laundering, the judge can permit wiretapping as well as secret surveillance of live
conversations by means of technical devices (§§ 100a I no. 2,100c CCP).

The first of these objections is based on theoretical considerations concerning the
legal interest protected by bribery offenses. If it is true, as a majority of German
writers maintain [55][55] See Dölling (n. 2), pp. 49-50;Überhofen (n. 45), pp. 76..., that the prohibition of bribery is to protect the determination of
administrative decision-making exclusively by objective factors (and not by
personal preferences of public officials), then punishing subsequent remuneration
of public officials can only have an indirect effect on the legal interest protected : a
public official who obtains an advantage as a reward for services rendered may be
inclined to give preferential treatment to the giver of the reward in future
encounters. This connection between paying for past performance and potentially
manipulating future performance is, however, of sufficient psychological
plausibility to warrant criminalization of the seemingly harmless « after the fact »
bribery [56][56] Accord, Dölling (n. 2), pp. 64-65..

The issue of giving or demanding advantages to third persons is a practical rather
than a theoretical problem. It can hardly be denied that giving an advantage to a
third party on the request of a public official can illicitly influence the latter’s
performance of his duties [57][57] Accord, Dölling (n. 2), pp. 67-68.. Still, the wording of the relevant Code provisions (§§
331,333 PC) may be too broad in that they appear to prohibit even the offering or
acceptance of, e.g., private funds to promote research in a university institute or
for public charities. There does exist in these cases the possibility of obtaining
previous or subsequent permission for the transaction by the superior
administrative agency, but even that possibility is foreclosed when the public
official has « demanded » the advantage (cf. § 331 III PC). It would thus be useful
either to expressly restrict penalization of the « advantage to others » situation to
cases in which the public official obtains an indirect personal benefit (which may
lead to difficulties of proof), or to provide a special justification for instances of
legitimate sponsoring of public causes.

The de minimis issue, i.e. the exception of very minor, socially customary
advantages from the ambit of criminal corruption law, should not be regulated by
legislation. Since the acceptability of such practices does not so much depend on
the monetary value of the advantage given to the public official but on the
situational context, a legal provision could do no more than state a general
principle which is already being applied, more or less consistently, by the courts
and proecutorial agencies.

The 1997 legislation has raised the sentences for active bribery (§§ 333,334 PC).
This has led to a change in the relative weighting of passive and active bribery :
whereas earlier legislation had treated the « active » citizen more leniently than the
public official who demands or accepts bribes, the briber is now in effect treated
more harshly because the maximum sentence for his activity is the same as the
maximum for passive bribery even though he is not in the same position of special
trust as a public official - a fact that generally leads to mitigation of punishment for
accessories (§ 28 I PC) [58][58] Cf. Cramer, in : Schönke/Schröder, § 333 note 1;Hettinger,.... It might be preferable to return to the former arrangemen,. i.e. to provide the most severe sentences for passive bribery and to grant
a « discount » to citizens involved in active bribery.

Before introduction of the 1998 legislation extending applicability of German
corruption law to bribing foreign officials (see III. 2., supra), several writers had
been critical of such legislation [59][59] Dölling (n. 2), pp. 104-105; Kerner/Rixen, GA 1996,355..., arguing that extension of German provisions
against corruption to foreign jurisdictions could be regarded as paternalistic and
that prosecution of consensual conduct in far-away lands would in any event be a
highly unrealistic perspective. While the latter argument still holds true, the notion
that we impose our own cultural and legal standards on unwilling recipients has
been effectively refuted : corruption in developing and threshold countries benefits
« first world » business enterprises, has a negative impact on fair international
competition and does great harm to the long-term economic interests of affected
countries [60][60] See Frisch, in : Pieth/Eigen (n. 6), p. 89. ; it is hence commendable that the international community joins efforts
to combat corruption in business relations by setting common standards and
enforcing them (to the extent possible) with the help of domestic criminal law [61][61] For a useful analysis of the issue, see Pieth, ZStW....

It has been mentioned above that completion of bribery offenses occurs very
early : even the mere utterance of an offer or a demand fulfils the offense definition
of active or passive bribery. Some authors have therfore called for introduction of
an « abandonment » provision, enabling a person to obtain impunity by voluntarily
retreating from a corruptive design and informing the authorities before that design
has been carried out [62][62] See Bannenberg (n. 18), pp. 412 et seq.; Lisken, NJW.... German law contains parallel provisions for cases of « active
repentance », opening a door for offenders to retreat from a technically complete
offense before any harm has been done [63][63] See, e.g., §§ 142 IV (leaving the scene of an accident),.... Introducing a provision of this kind for
corruption offenses would have the added advantage of potentially gaining the
cooperation of participants in a corruptive scheme in the prosecution of others, thus
increasing the risk of conviction for everybody involved in a corruptive scheme.
Such a provision should, however, pertain only to persons who have limited
themselves to offering or promising a bribe or to demanding or accepting a promise
of one, because once a corruptive agreement has been acted upon (by giving and
accepting the advantage) it cannot unilaterally be retracted by one party. In order
to make an « active repentance » clause effective, impunity should be a mandatory
consequence, not a mere option left to the discretion of the court [64][64] Leaving to courts the option of only reducing the sentence....

b) Criminal liability of legal persons

Because bribery is often committed on behalf of business companies or other
legal persons, many international instruments on combating corruption call for the
introduction of sanctions directed at legal persons [65][65] See, e.g., Art. 2 OECD Convention on Combating Bribery.... A growing number of legal
systems provide for criminal liability of legal persons. Responsibility of legal
persons for unlawful acts committed by their executive organs for the benefit of the
legal person certainly is a useful and justifiable instrument of imposing liability. It
does not, however, fit well into the system of criminal law, which is based on the
principle of individual moral guilt. It is therefore recommendable to maintain the
German system of providing for liability of legal persons under the heading of
administrative infractions (§ 30 Gesetz über Ordnungswidrigkeiten). This system
provides the possibility of imposing heavy fines on legal persons while upholding
the individual character of « core » criminal liability [66][66] Accord, Bannenberg (n. 2), pp. 409 et seq.; for a contrary....

2. Procedural Issues

German anti-corruption criminal legislation is fairly comprehensive - the main
problem in practice is to detect the commission of offenses and to obtain sufficient
proof for conviction in court. Several proposals have been made to lower the
procedural obstacles and to make conviction more likely.

One suggestion has been to introduce an obligation on certain public agencies to
report all instances of possible corruption to the public prosecutor [67][67] See, e.g., Kerner/Rixen, GA 1996,355 at 394.. It is doubtful,
however, whether such an obligation would not be counterproductive in that it may
reduce the willingness of insiders to come forward with confidential information on
suspicions of corruption [68][68] See Dölling (n. 2), p. 99..

Because corruption is a conspiratorial offense without an individual victim
information can, as a rule, only be obtained from insiders or by methods of
surreptitious surveillance. Proposals have been made, therefore, to encourage
« insider » witnesses to come forward and to permit the use of agents provocateurs
for providing evidence of corruption. With respect to the former, there were several
proposals in the 1990s to grant freedom from prosecution or a reduced sentence
to « crown witnesses », i.e. participants in bribery offenses who provide information
to the state [69][69] For a list of legislative proposals, see Bannenberg.... The plausibility of the general notion behind the use of « crown
witnesses » (who need not in fact appear as witnesses in court - in many cases, it
is sufficient that they provide law enforcement agencies with leads to other
offenders) can hardly be denied : it is an inexpensive method for the state to obtain
inside information on conspiratorial offenses that would not otherwise be easily
available [70][70] Graf Lambsdorff, in : Pieth/Eigen (n. 6), p. 56 at.... Yet there has been widespread criticism of crown witness statutes that
Germany had introduced in the 1970s and 1980s for drug and terrorism offenses
as well as for other offenses related to organised crime : promising impunity or
leniency for information can lead to unreliable or useless statements by individuals
intent on reducing their penalty and/or harming others; « crown witnesses » must
come forward with information without any assurance of their eventual reward; the
ability to provide information on crime is not a legitimate sentencing factor; access
to the leniency provison of a « crown witness » statute often depends on chance
factors, thus violating the principle of equality; and it is harmful to the authority of
the state when it is seen haggling over information with criminals [71][71] For recent comprehensive discussions see Breucker/Engberding,.... It is not only
because of these objections but also because of its perceived ineffiency that the
German « crown witness » statute for terrorism and organised crime offenses was
allowed to expire in 1999 and has not since been renewed. Its re-introduction
specifically for corruption offenses cannot be recommended because its
drawbacks both in practical terms and (more importantly) in undermining the
credibility of the state’s aspiration to establish a rule of law outweigh any possible
advantages [72][72] Accord, Kerner/Rixen, GA 1996,355 at 385; Ransiek,....

Introducing informers into the inner circle of conspiratorial crime is another
controversial method of obtaining information for later prosecution. As has been
mentioned above (IV., supra), German law regulates only one aspect of this
method, i.e., the use of undercover police agents, and does not make this method
regularly available for the investigation of bribery offenses (§ 110a CCP). As for
other informers paid or instructed by the police, German courts have established
certain ground rules (e.g., informers must not use methods prohibited by § 136a
CCP to obtain information) but otherwise have left this « gray area » unregulated.
It is therefore possible for law enforcement to persuade any private person to
gather and provide information on crime and even to encourage persons who
already have a general propensity to commit certain offenses in order to gain
evidence later to be used in court [73][73] See BVerfGE 57,250; BGHSt 32,115; 40,211; 42,139; .... It would be preferable to have a clear and
restrictive statutory regulation of this difficult subject matter, but as long as it is not
forthcoming there is certainly no need to expand further the state’s possibilities to
use informers and agents provocateurs in cases of corruption.

With respect to electronic surveillance of telephone and « live » conversations,
recent changes have led to the anomaly, described above (IV.), that in cases of
suspected aggravated corruption of a public official (§§ 332,334 PC) hidden
microphones can be installed in the suspect’s home but not in open space, and
that his telephone cannot be put under surveillance (§§ 100a, 100c CCP). With
respect to business corruption (§ 299 PC), secret surveillance of conversations is
not permissible. Some writers have suggested an expansion of the authorization
to electronically monitor conversations [74][74] Dölling (n. 2), p. 100; Dölling, ZStW 112 (2000), p. 334.... Even if one regards with skepticism and
concern the recent trend of German legislation to continually expand the authority
of law enforcement to intrude the citizens’ sphere of privacy one must concede
that it would only be consequent to follow up with the first step (i.e., permitting
wiretaps and outdoor surveillance) after one has already taken the second (i.e.,
permitting surveillance of conversations in the home).

3. International Harmonization

International harmonization of laws against corruption is desirable to the extent
national courts can adjudicate corruption offenses committed abroad. This is the
case, as has been shown, under Art. 2 § 1 no. 2 (a) EU-Bestechungsgesetz, which
assimilates German public officials and those of other member states of
theEuropean Union, thus in effect creating a common espace judiciaire with
respect to aggravated bribery. If that is the case, member states should make
certain that definitions of bribery as well as definitions of what is a public official do
not differ from each other. Arts. 2 and 3 of the EU Convention on the combat of
bribery of 1997 provide offense definitions that closely parallel those to be found
in German law; they could be a good basis for Europe-wide harmonization.

When national jurisdiction on corruption offenses is extended to offenses
committed by nationals abroad, there does not seem to be a need for a special
international court on corruption. It has to be ensured, however, that states make
good-faith efforts to punish offenders and do not use prosecutorial discretion for
refraining from prosecution because of political or economic considerations [75][75] Cf. Art. 5 OECD Convention on Combating Bribery of....

4. Preventive Measures

In German discussion, there seems to be agreement that criminal law is an
indispensible tool in the combat of corruption. Yet even if the threat of punishment
for corruption may, due to the typically elevated social position of potential
offenders, be a more effective deterrent than with other kinds of harmful conduct,
one should not neglect the development and implementation of preventive
measures. In German literature, several measures have been proposed to prevent
the occurrence of corruption in public administration [76][76] See, e.g. Bannenberg (n. 18), pp. 440 et seq.; Graf...: restriction of individual
public officials’ discretion in decision-making, increased job rotation to avoid the
building of long-term relationships between entrepreneurs and public officials,
involvement of more than one public official in critical decisions, strict and random
internal controls of sensitive decision-making, development of lists of « warning
signals » indicating the opening of an investigation for possible corruption, the
installation of corruption hotlines and independent « corruption ombudsmen », and
measures to protect « whistle-blowers » from reprisals. There have also been
suggestions to strengthen non-criminal reactions to misconduct, e.g., sanctioning
of passive corruption through disciplinary measures and exclusion of bribing
enterprises from public bidding.

Some of these measures are, however, quite costly - frequently rotating public
officials in corruption-sensitive positions, for example, leads to losses in terms of
expertise and information and might be less economical than tolerating a certain
level of corruption [77][77] See Kerner/Rixen, GA 1996,355 at 371.. Yet reform efforts should concentrate on the area of
prevention rather than rely on just raising the level of criminal penalties - a
measure notoriously ineffective in impeding crime.

Finally, the success of the fight against corruption depends very much on installing
(or restoring) an ethos of integrity among public officials. Raising public officials’
sensibility through the dissemination of information and through seminars
featuring role-playing and discussion of borderline situations may be one way to
help achieve this goal; what is even more important, however, is to select for public
service individuals with high personal integrity and to maintain a spirit of
lawfulness and loyalty to public service values through giving proper public appreciation and adequate remuneration to public officials.

Entscheidungen des Bundesgerichtshofes in Strafsachen (hereinafter : BGHSt) 45,16 at 19 ( 1999). In its decision BGHSt 46,310 at 313 ( 2001), the Federal Court of Appeals
explains that the function of the organisation employing the offender must be comparable
to a typical public function.

§ 332 III reads : « If the offender demands, accepts an offer of or receives any advantage
in return for a future act, sections 1 and 2 are applicable when the offender has shown
himself ready (i) to violate his duties in carrying out the act or (ii) insofar as the act involves
the exercise of discretion, to let the advantage influence the exercise of his discretion. »

§ 28 I PC provides that an accomplice in an offense the commission of which requires
certain personal circumstances defined by the statute (e.g., the status of being a public
official in §§ 331,332 PC) must receive a sentence discount if these personal
circumstances are not applicable to him.

State employees can commit the offense of business bribery only to the extent that the
state takes part in regular market competition, e.g., in relation with the acquisition of
materials for administrative agencies. To the extent a state-influenced organisation or
enterprise is regarded as part of the public administration (and the persons acting for that
organisation are thus public officials in the sense of §§ 331,332 PC), § 299 PC is not
applicable; see Tiedemann, in : LK, § 299 note 18.

It is not quite clear whether this requirement is fulfilled, e.g., when business bribery in
the foreign jurisdiction is punishable as an offense against the interests of the enterprise
whose employee is receiving the bribe; see Tiedemann, in : LK, § 299 note 56.

It should be noted that territorial application of the German law on active and passive
bribery under this statute is not limited to the territory of the European Union; as long as the
act affects a judge or public official of the European Communities or of any member state,
German courts have jurisdiction even if the act took place outside Europe and was not
punishable there.

The preambles of the Protocols of Sept. 27,1996, and of June 19,1997, on which the
German statute is based, mention as the purpose of assimilation of corruption offenses only
the improved protection of the financial interests of the Communities - which would primarily
require the assimilation of bribing EC officials to the bribing of national public officials of the
respective member state. The further step of assimilating offenses of corruption relating to
or committed by national public officials of any member state was taken for the first time in
the Convention on Combating Corruption of May 26,1997. The preamble of this
Convention gives no substantive reason for this extension except that it mentions
« improvement of judicial cooperation among member states ».

See, however, Überhofen, Korruption und Bestechungsdelikte im staatlichen Bereich, 1999, p. 129, arguing that § 331 PC, by extending liability to accepting advantages « for
providing public service », in fact shifts the burden of proof to the public official who has
received an advantage : he must then demonstrate the purely private context of the gift.

Cf. Ruß, in : LK, § 259 note 5;Stree, in : Schönke/Schröder, § 259 note 7. The result may
be different with respect to business bribery if one assumes that bribing an employee of a
business enterprise has a direct impact on competitors’financial situation.

There is some dispute as to whether German law is applicable when the offense was
directed against a legal entity chartered in Germany; cf. Eser, in : Schönke/Schröder, § 7
note 6; Gribbohm, in : LK, § 7 note 48.

See Dölling (n. 2), pp. 49-50;Überhofen (n. 45), pp. 76 et seq. (with further references).
Other authors regard as the protected legal interest the general reputation of state
administration ( Cramer, in : Schönke/Schröder, § 331 note 3) or the trust of the public in the
incorruptibility of public service (BGHSt 15,88 at 96; Jescheck, in : LK, vor § 331 note 17,
with further references). From this « subjective » perspective, it is easy to explain the
inclusion of subsequent payments in bribery prohibitions; but this perspective fails to
provide any rational limits to criminal liability for bribery : corruption is what the public think
it is.

Leaving to courts the option of only reducing the sentence (as do the provisions cited
in note 63 supra) drastically reduces the attractiveness of « active repentance » provisions
because a potential turncoat can never be certain whether and to what extent his
cooperation with law enforcement will be honored.

See, e.g., Art. 2 OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Relations (1997); Art. 4 Second Protocol on the European
Communities Convention on the Protection of Financial Interests of the European
Community (97/C221/02) (1997); Art. 19 II Council of Europe Draft Criminal Law
Convention on Corruption (1998).

Graf Lambsdorff, in : Pieth/Eigen (n. 6), p. 56 at 84-85, correctly points out that the use
of crown witnesses and informers increases the transaction costs of corruption by
heightening the risk that information will not remain confidential, thus making it necessary
for offenders to take additional measures of caution, e.g., checking the background of every
person involved in an illicit « deal ».

Accord, Kerner/Rixen, GA 1996,355 at 385; Ransiek, StV 1996,446 at 449. But see
my suggestion to offer impunity for « active repentance » ( supra) - this institution is built on
a different, more stable theoretical foundation (i.e., avoidance of harm or restitution) and
can have similar effects as a « crown witness » statute in that it may persuade insiders to
cooperate with law enforcement.

Dölling (n. 2), p. 100; Dölling, ZStW 112 (2000), p. 334 at xx;Schaupensteiner, NStZ 1996,409 at 414; but see, contra, Kerner/Rixen, GA 1996,355 at 393. Überhofen (n. 45),
p. 167, recommends limiting the authority to order wiretaps to particularly serious cases of
corruption (§ 335 PC). This is hardly practical because in the early stages of an
investigation it will often not be possible to determine whether the offense in question is
« particularly serious ».